The right-privilege distinction, as it appeared in an early statement by
Justice Holmes, has long hampered individuals within the public sector in
protecting themselves against arbitrary governmental action. In this article
Professor Van Alstyne reviews the uses and misuses to which the
"privilege" concept has been put and then examines those doctrines
whose flanking attacks have gradually eroded its efficacy. But none of these
doctrines comes to grips with Holmes' basic idea of a "privilege" to
which substantive due process is inapplicable. Applying Holmes' Own
jurisprudence, the author argues that the concept of "privilege" is
today no longer viable, and that the size and power of the governmental role in
the public sector requires substantive due process control of the state in all
its capacities.

In 1892, Justice Holmes, speaking for the Massachusetts Supreme Judicial
Court in McAuliffe v. Mayor of New Bedford, trenchantly dispatched the
petition of a policeman who had been fired for violating a regulation which
restricted his political activities:[1]

The petitioner may have a constitutional right to talk politics,
but he has no constitutional right to be a policeman.

There are few employments for hire in which the servant does not
agree to suspend his constitutional right of free speech, as well as of
idleness, by the implied terms of his contract. The servant cannot complain, as
he takes the employment on the terms which are offered him.

A scant three years later, Justice Holmes had occasion to confirm this
conception of the scope of constitutional protection in upholding the
conviction of a preacher who had violated a municipal ordinance in presenting a
public address on the Boston Common without securing a permit from the mayor.
Noting that the Boston Common was governmentally owned, and disregarding the
fact that the ordinance was utterly lacking in standards to control the mayor's
discretion, Holmes added:[3]

For the Legislature absolutely or conditionally to forbid public
speaking in a highway or public park is no more an infringement of the rights
of a member of the public than for the owner of a private house to forbid it in
his house. When no proprietary right interferes, the Legislature may end the
right of the public enter upon the public place by putting an end to the
dedication to public uses. So it may take the lesser step of limiting the
public use to certain purposes.

Thus, it was as though Justice Holmes merely restated his earlier epigram:
the defendant may have a constitutional right to talk religion, but he has no
constitutional right to use the Boston Common.

This tough-minded distinction between constitutionally protected rights of
private citizens and unprotected governmental privileges has been applied to
defeat a great variety of claims associated with government employment or other
forms of largess. In upholding the summary dismissal of a federal civil servant
from a nonsensitive position on grounds of suspected disloyalty, for instance,
a federal court of appeals has said:[4] "The First Amendment guarantees free speech and
assembly, but it does not guarantee Government employ." Similarly, the
Tennessee Supreme Court abruptly rejected fourteenth amendment claims by a
public school teacher punished for violating a statutory ban on the teaching of
"any theory that denies the story of the divine creation":[5]

[Petitioner] had no right or privilege to serve the State except
upon such terms as the State prescribed.... In dealing with its own employees
engaged upon its own work, the State is not hampered by the limitations of . .
. the Fourteenth Amendment to the Constitution of the United States.

And more recently, in 1954, the Supreme Court upheld the suspension of a
physician's license on equally tenuous grounds. The physician had been
convicted of contempt of Cougress for declining to produce certain papers for a
committee of the House of Representatives. His license was suspended on the
basis of this criminal conviction, even without a showing that his actions
related to his competence or professional integrity as a physician:[6]

The practice of medicine in New York is lawfully prohibited by
the state except upon the conditions it imposes. Such practice is a privilege
granted by the State under its substantially plenary power to fix the terms of
admission.

If this view were uniformly applied, the devastating effect it would have on
any constitutional claims within the public sector can be readily
perceived.[7] A public housing tenant
summarily evicted without a hearing or any stated reason should have no basis
for complaint: surely one no more has a right to public housing than to public
employment; in either case he simply takes the benefit on the terms offered
him.[8] An impoverished couple
actually domiciled in a state should still have no complaint against a one-year
residence requirement for welfare recipients: one may have a right to equal
protection, but he has no right to public welfare.[9] And certainly public university students summarily
expelled or suspended should have no constitutional grounds for reinstatement,
for it must be equally clear that while petitioners may have a right to
procedural due process, they have no right to be educated at public
expense.[10]

Fortunately, however, the right-privilege distinction has not in fact
removed all restraints from the government in the public sector. Although in
some cases it has been misapplied to facts which did not come within its
rationale at all, in others it has not been applied even though the facts did
fit its rational. Increasingly, when the petitioner's primary interest in the
public sector could not be characterized as a "right" entitled to
protection on grounds of substantive due process, courts have nonetheless found
some other implicated right to sustain the claim. Alternatively, they have
granted relief through recourse to constitutional provisions which operate
irrespective of whether what is involved is deemed a privilege, rather than a
right. While the concept of "privilege" underlying Holmes' epigram
remains nominally intact, its implications for positive law have been gradually
eroded. After considering those situations where the right-privilege
distinction has been misapplied, I propose to review those means which the
Supreme Court has utilized to avoid the harsh consequences of the distinction,
and then to reexamine the essential soundness of the distinction itself.

I. AN EPIGRAM OVERDONE

The notion that "the petitioner has no right to be a policeman" is
a specific application of the larger view that no one has a constitutional
right to government largess.[11]
This view distinguishes the limited power of the state "reasonably"
to regulate activities conducted by private means without substantial
assistance by government from the unlimited power of the state to regulate
advantages supplied by government without obligation. The conception of
unprotected state-bestowed privileges was not originally designed to curtail
claims of substantive due process in the private sector.[12] An individual could still directly assail a state
statute affecting his private employment on the ground that is unreasonably
regulated his right to work or right to contract, without having to show it
also indirectly curtailed some separately named constitutional interest such as
his freedom of speech. As the Court suggested in Meyer V. Nebraska, in
invalidating a state statute forbidding teachers from providing instruction in
German even in private schools:[13]

The established doctrine is that this liberty [guaranteed by the
due process clause] may not be interfered with, under the guise of protecting
the public interest, by legislative action which is arbitrary or without
reasonable relation to some purpose within the competency of the State to
effect. Determination by the legislature of what constitutes proper exercise of
police power is not final or conclusive but is subject to supervision by the
courts.

If the basic distinction implied by Holmes in McAuliffe is kept in mind,
cases of the same general period, such as Hamilton v. Regents of the
University of California[14]
are not inconsistent with Meyer. In Hamilton, as in McAuliffe, petitioners were
complaining of regulations attached to something they sought from the state
rather than something they had secured in the private sector without public
assistance. Students excluded from the state university for failing to take
military training were therefore unable to argue on the basis of substantive
due process that a "right to acquire useful instruction," since the
instruction they sought was dependent on government largess.[15] However, other cases relying upon the
McAuliffe view blurred the distinction upon which it was based. In Barsky v.
Board of Regents,[16] for
instance, the physician whose license was suspended following his conviction of
contempt of Congress was not merely dropped from a public job. Not even on the
public payroll to begin with, he was forbidden under pain of criminal
prosecution to practice medicine privately. What had happened was that, over a
period of time, the Court had recognized that even the personal liberty to
contract in the private sector, to work in the private sector, or to own
property was subject to a high degree of reasonable governmental regulation in
the public interest against the claim that such "rights" were
absolutely protected by the fourteenth amendment. This recognition
emerged in an irregular line of thoughtful cases beginning no later than
Munn v. Illinois[17] and
tracing through Holden v. Hardy[18] and Muller v. Oregon.[19] It was made firm through Nebbia v. New
York[20] and has been
consistently followed to the present time.[21] In recognizing that the "right" to own
property or the "right" work in the private sector is necessarily
subject to public regulation compatible with some minimum standard of
substantive due process, however, the Court had never asserted that such an
interest was wholly outside the protection of the due process clause. But cases
such as Barsky tacitly moved toward the proposition that because the
private sector is subject to considerable public regulation, even the exercise
of a prerogative in the public sector is merely a privilege, and can stand on
no better footing than other kinds of privileges  such as those in the
public sector.[23] Thus the Court
moved by negligent degrees in a few aberrant cases to the following neologism:
the petitioner may a right to talk politics, but he has no right to be a doctor
 even a private one. The excerpt from Barsky is so instructive on
this point as to bear repeating:[23]

The practice of medicine in New York is lawfully prohibited by
the State except upon the conditions it imposes. Such practice is a privilege
granted by the State under its substantially plenary power to fix the terms of
admission.

II. ERODING THE EPIGRAM

Nearly a half dozen means are currently available to circumvent the harsh
consequences of the right-privilege distinction as applied to private interests
in the public sector. Each peacefully coexits with the Holmes epigram, for none
involves any direct repudiation of the right-privilege distinction as a
limitation on claims of substantive due process in the public sector. But the
extent to which these devices are available depends upon the circumstances, and
all but one have substantial practical limitations.

A. The Doctrine of Unconstitutional Conditions

The doctrine of unconstitutional conditions[24] takes for granted that "the petitioner has no
right to be a policeman," but it emphasizes the right he is conceded to
possess by reason of an explicit provision in the first amendment, his
"right to talk politics." As stated by Mr. Justice Sutherland in
1926:[25]

It would be a palpable incongruity to strike down an act of
state legislation which, by words of express divestment, seeks to strip the
citizens of rights guaranteed by the federal Constitution, but to uphold an act
by which the same result is accomplished under the guise of a surrender of a
right in exchange for a valuable privilege which the state threatens otherwise
to withhold. . . . If the state may compel the surrender of one constitutional
right as a condition of its favor, it may, in like manner; compel a surrender
of all. It is inconceivable that guarantees embedded in the Constitution of the
United States may thus be manipulated out of existence.

Essentially, this doctrine declares that whatever an express constitutional
provision forbids government to do directly it equally forbids government to do
indirectly. As a consequence, it seems to follow that the first amendment
forbids the government to condition its largess upon the willingness of the
petitioner to surrender a right which he would otherwise be entitled to
exercise as a private citizen. The net effect is to enable an individual to
challenge certain conditions imposed upon his public employment without
disturbing the presupposition that he has no "right" to that
employment. The unconstitutional conditions doctrine has been applied, for
example, to forbid a state to discontinue unemployment benefits to a person
refusing Saturday employment for religious reasons.[26] And it has been employed to protect the status of
state college students from summary termination, against the argument that the
privilege of attendance had been conditioned upon their acceptance of a rule
permitting summary dismissal.[27]
The doctrine would appear to apply equally well to every other case where the
enjoyment of a government-connected interest is conditioned upon a rule
requiring that one abstain from the exercise of some right protected by an
express clause in the Constitution. Literal application of the doctrine might
mean, for instance, that a welfare recipient need not consent (and cannot be
held by his economically coerced consent) to a warrantless search of his
lodgings absent circumstances otherwise justifying an equivalent administrative
search of private premises occupied by one not on welfare.[28] It would also suggest that a policeman can no more
be made to waive his privilege against self-incrimination than can a private
attorney.[29] It would further
imply that the decision in United Public Workers v. Mitchell,[30] upholding the constitutionality of the
Hatch Act, was incorrect, since the political activity pursued by the civil
servant in that case was doubtless protected by the first amendment from direct
regulation as applied to private citizens.[31] As an "exception" to the right-privilege
distinction, the doctrine seems to be a very broad one which is subject only to
one major limitation: the petitioner must demonstrate that the condition of
which he complains is unreasonable in the special sense that it prohibits or
abridges the exercise of a right protected by an explicit provision in the
Constitution.[32] It provides no
protection against a regulation which is simply unreasonable or even outrageous
in that it has no reasonable connection with any legitimate public purpose, for
in that case only the petitioner's public status is menaced  something to
which he presumably has no "right" to begin with.[33]

The doctrine of unconstitutional conditions is highly attractive for two
quite practical reasons. First, it preserves the appearance of judicial
objectivity. A court need not "weigh" or "balance"; it need
simply apply the literal mandate of a given constitutional provision flatly to
forbid government from conditioning its largess on any waiver of such a
provision regardless of the circumstances. A court may thus avoid any unseemly
appearance of acting as a superlegislature. - Second, the doctrine greatly
expedites decision making and provides clear guidelines in cases which might
otherwise be especially difficult to resolve. Instead of canvassing a host of
variables in a quasi-legislative fashion on the strength of a barely adequate
record, a court may seem to have but a single straightforward question to
resolve: did the regulation in question condition the petitioner's privilege
upon the waiver of a named constitutional right?[34]

Mr. Justice Holmes, however, consistently with his earlier holding in
McAuliffe, never fully accepted the unconstitutional Conditions doctrine
and was probably correct in believing that in its absolute form it evaded the
more difficult question raised by justifiable state regulations.[35] The basic flaw in the doctrine is its
assumption that the same evil results from attaching certain conditions to
government-connected activity as from imposing such conditions on persons not
connected with government. In many cases this may be true, but the connection
with the government may in certain circumstances make otherwise unreasonable
conditions quite reasonable. In Holmes' view, even rights protected by an
express provision of the Constitution were relative and might be made to yield
to certain necessities. To forbid the false shouting of "Fire!" in
the crowded theater was not to reach the "same result" as to forbid
shouting in one's bedroom.[36] To
limit a policeman's privilege against self-incrimination in connection with
questions immediately related to his job as a policeman, and solely in order to
determine whether there is just cause to discharge him or at least to make
further inquiry, would not be the "same thing" as to require answers
of citizens in police custody for the purpose of aiding their criminal
prosecution. The judicial result cannot be made to turn upon such a pretended
"sameness." Thus to hold that the privilege against
self-incrimination applies to public employees should not prevent the
government, under appropriate circumstances, from making inquiry of an employee
respecting his job.[37] And, under
the facts of McAuliffe, the existence of a right to talk politics ought
not necessarily to mean that it can be exercised in violation of a departmental
regulation while one is in government service, at least the character of the
governmental position necessitates the restriction of this right in the
interest of a compelling public good.[38] Yet the unconstitutional conditions doctrine, while
attaching no constitutional significance to the status in the public sector,
may lack the flexibility adequately to treat such problems.

B. "Indirect Effects" and Constitutional
Rights

The doctrine of unconstitutional conditions has usually been applied only to
regulations which directly forbid the enjoyment of an explicit constitutional
right. The doctrine has been of little assistance in those situations, however,
where the regulation of status in the public sector has had only an indirect
effect on such a right, without directly and wholly forbidding its exercise.
The Supreme Court has nonetheless occasionally protected the petitioner's
status under such circumstances by emphasizing the "unconstitutional
effect" of the regulation, although still leaving undisturbed the
conventional view that one has no constitutional right per se to status in the
public sector. The character of constitutional review is more complex in such
cases than in those typically believed to involve unconstitutional conditions,
however; and it correspondingly begs fewer questions. The Court attempts to
balance competing public and private concerns to determine whether the
regulation as applied has a sufficient connection with important enough state
interests to outweigh the incidental effect on the constitutional rights of the
affected class.

An excellent illustration of such an approach is provided by Shelton v.
Tucker.[39] A closely divided
Court invalidated an Arkansas statute requiring every public school teacher
annually file an affidavit listing every organization to which he belonged or
to which he had regularly contributed within the preceding five years. The
statute itself did not penalize membership in any group.[40] Thus, the claim did not lend itself to quick
judicial dispatch through a mechanical holding that freedom of association is
protected by the first amendment and that the doctrine of unconstitutional
conditions forbids a state to condition its favor upon the surrender of a
constitutional right. Had the Court wanted to apply the doctrine of
unconstitutional conditions, it would first have had to hold that the first
amendment broadly guarantees, in addition to the freedom to speak, an absolute
right of nondisclosure respecting one's political views and associations. It
might then have held that the Arkansas statute operated as an unconstitutional
condition against that right. Such an expansive right is not readily apparent
on the face of the amendment, however, and a formulation broad enough for the
case at hand would have had serious implications in related areas. It might,
for example, have raised serious doubts as to the validity of the present
limitations on the prerogative of a witness before a congressional
investigating committee to decline to answer any relevant and substantially
non-incriminating questions.[41]
The doctrine of unconstitutional conditions, mechanically applied, might not
furnish room to make distinctions as to the reasonableness of the demand for
information under all the circumstances. In Shelton v. Tucker, the Court
eschewed the unconstitutional conditions doctrine and instead undertook a more
difficult and painstaking inquiry. It guessed the probable effect of the
statute in discouraging controversial political association, in light of the
lack of a tenure system to provide job security. It acknowledged the state's
legitimate but uncompelling interest in avoiding possible conflicts of interest
and time-consuming commitments on the part of its employees. It also noted that
less ominous means were open to the state to protect its interests than the
compilation of unconfidential and indiscriminately inclusive membership lists.
A majority of five finally concluded that the statute was invalid in view of
its chilling effect on the exercise of the first amendment freedoms of
association and speech.[42]

The form of analysis used by the Court in Shelton reflects a more
fundamental difference between the unconstitutional conditions and indirect
effects doctrines than can be accounted for by the mere presence or absence of
a direct ban on the exercise of a constitutional right. Presumably the Court
could have limited its inquiry to whether the Arkansas statute might indirectly
produce the same result in its infringement of freedom of association as would
a direct prohibition on membership in certain groups. It could thus have
avoided the speculative weighing of offsetting private and public interests,
for any such regulation which would have the effect of infringing first
amendment guarantees could be struck down as an unconstitutional condition on
public employment. But the weakness of the unconstitutional conditions doctrine
was that in its very ease of application it failed to attach any significance
to the legitimate public purposes which any regulation might serve. In
contrast, Shelton v. Tucker quite carefully focuses on the competing
interests involved. It would presumably have been decided differently if state
had been able to show (a) a stronger public interest, (b) a closer connection
between the information requested and the protection of important public
interests, or (c) the lack of any feasible alternative means adequately to
guard against employee conflicts of interest. The result might have been
different, that is, even though the degree of indirect effect on freedom of
association would have remained constant.[43] Thus, the indirect involvement of a specific
constitutional interest does not, as under the mechanical application of the
doctrine of unconstitutional conditions, necessarily or as readily guarantee
the invalidity of the regulation.

However, even the indirect effects group of cases fails to impair the
conventional view that status in the public sector does not itself present a
constitutionally protected interest. The petioners in Shelton were not
able to claim that the Arkansas statute was a constitutionally unreasonable
regulation of their employment; the condition on their public status again was
vulnerable only because it was a constitutionally unreasonable regulation of
their first amendment freedom of association.

C. Procedural Due Process

Although there are only a few cases in which a procedural argument is
clearly featured, a person may sometimes successfully rely on an independent
right to procedural due process to avoid some of the harsh consequences of the
right-privilege distinction. Again, however, this argument outwardly does not
reject the major premise of that distinction. In the first instance, a
requirement of a minimally fair hearing holds only that whenever the
legislature has seen fit to limit the grounds for terminating or denying
certain benefits, the administering agency must still observe certain minimum
procedural standards to provide reasonable assurance that the petitioner did in
fact offend one of the specified grounds; but the power of Congress or a state
legislature to set substantive standards without constitutional restriction is
not denied. Thus, the petitioner may have no right to talk politics while in
the public service, but still he may not be discharged without an adequate
hearing which may fairly determine whether in fact he had been talking
politics. As Mr. Justice Jackson put it:[44]

The fact that one may not have a legal right to get or keep a
government post does not mean that he can be adjudged ineligible illegally.

Accordingly, the constitutional right to procedural due process can be made
to operate independently of whether the petitioner has a "right" to
talk politics or a "right" to be a policeman. It comes in from the
outside to build in the assurance provided by fair procedures that a decision
is in fact supportable on whatever grounds the legislature or an agency itself
has provided. The character of the hearing to which a person may be
constitutionally entitled may depend upon the importance of what he stands to
lose, of course, but his constitutional right to procedural due process
entitles him to a quality of hearing at least minimally proportioned to the
gravity of what he otherwise stands to lose through administrative fiat.

The need for procedural due process may also be derived from the concept of
unconstitutional conditions. If the unconstitutional conditions doctrine is
sound in holding that government may not terminate or withhold benefits
according to standards it is constitutionally forbidden to impose upon private
citizens, then it would seem to follow that a person whose status in the public
sector is threatened by administrative action should have a right to a fair
hearing to make certain that the administrative action is not in fact being
taken for reasons which are constitutionally improper. Otherwise, the doctrine
could be effectively undermined by wholly insulating unconstitutional
administrative action from discovery and correction. The problem in Thorpe
v. Housing Authority[45] may
illustrate this point. Mrs. Thorpe occupied a public housing unit under an
agreement providing for unilateral termination by the Authority on fifteen
days' notice without a hearing or the statement of any reason  a
provision permitted by federal statute as of the time of her eviction.
Suggestively soon before the day she was served with an eviction notice, she
had been elected chairman of a tenants' association. From the face of the
pleadings, it is fair to assume that her activity in this regard was wholly
protected by the first amendment, and that a published standard providing for
her automatic eviction for exercising her freedom of association would be set
aside as an unconstitutional condition upon her first amendment rights.
Manifestly, however, those rights can be effectively destroyed if the agency
can oust her without any procedure suitable to guard against the likelihood
that its decision is in fact based upon antagonism to her exercise of first
amendment rights. Thus, it may be fair to say that the first amendment itself
can impose a duty of procedural due process upon those otherwise bound by its
provisions, and can establish a right to procedural due process for those whom
its provisions are substantively intended to protect. On the other hand, as
matters currently stand, constitutional claims to procedural due process in the
public sector are not absolute, and even important private interests can still
be taken away without an adequate hearing. It is as yet unclear whether the
doctrine of unconstitutional conditions will import a right to procedural due
process in all cases or only when the administrative decision rests prima facie
on some basis violative of an explicit collateral right (such as freedom of
speech); if the more limited view is adopted, the doctrine itself would be
insufficient to establish procedural safeguards against decisions which are
wholly unreasonable but do not imperil such explicit rights.

Moreover, the additional benefits to be gained even from an absolute right
to procedural due process are limited. Although the right to some form of
process may be absolute, the extent to which particular safeguards are
available nonetheless varies according to the circumstances. Where the
consequence of error is relatively insubstantial, protection against the risk
of error through the use of elaborate quasi-judicial procedures is subject to a
constitutional trade-off with the need for administrative and fiscal economy. A
student who stands in peril only of being on social probation may
understandably be judged with greater informality than one in peril of outright
expulsion, just as a job applicant need not receive the same type of
circumspect hearing as a long-time employee whose employment alternatives have
dwindled away and who is faced with the threat of discharge. In addition, where
substantive statutory standards have been met  or where there are no such
standards  and there is no recognized constitutional infringement, the
right to procedural due process will not serve to expand substantive rights.
Procedural due process alone would not, for example, protect Mrs. Thorpe from
eviction for no reason at all where no reason is required under the governing
statute. Yet despite these limitations, a right to procedural due process is
desirable; a hearing can expose to public view arbitrary or inequitable grounds
for a decision, thus facilitating a political remedy even where no legal remedy
is available, and may serve to establish the channels for an individual to
present his viewpoint to otherwise inaccessible administrators.

D. Equal Protection

The greatest circumvention of the distinction has been achieved via the
equal protection clause. Under that clause, it seemingly makes no difference
that the threatened interest is a privilege rather than a right. Even a
privilege, benefit, opportunity, or public advantage may not be granted to some
but withheld from others where the basis of classification and difference in
treatment is arbitrary. As Mr. Justice Clark stated in Wieman v.
Updegraff, in striking down a state loyalty oath read as containing no
requirement of scienter:[46]

We need not pause to consider whether an abstract right to
public employment exists. It is sufficient to say that constitutional
protection does extend to the public servant whose exclusion pursuant to a
statute is patently arbitrary or discriminatory.

This reasoning in Wieman seems to summarize the following more
elaborate equal protection argument. It may well be that no one has a right to
secure or to maintain public employment. In determining whom to admit or whom
to continue in public employment, however, government may not classify
individuals as eligible or ineligible where the basis of classification is
"arbitrary or discriminatory." A regulation which restricts the
continuing eligibility of employees to the class willing to conform to an
unreasonable rule of conduct ipso facto establishes an arbitrary
classification. Such a regulation denies equal protection and is therefore
unconstitutional.[47]

In the unconstitutional conditions and indirect effects cases, as we have
observed, the petitioner has been obliged to show in what way the regulation
adversely affects some interest readily recognized as falling within some
fairly explicit provision of the Bill of Rights, such as his freedom of speech
or religion, his right to privacy, or his privilege against self-incrimination.
But since a legislative classification may be arbitrary on grounds other than
that it adversely affects any of these particular interests, it is clear that
the scope of equal protection is not limited to regulations infringing only one
or more of these traditionally recognized rights. And since virtually every
regulation of the public sector falls short of universality, the equal
protection clause in this fashion may ultimately enable the petitioner
constitutionally to challenge the reasonableness of the rule or condition
affecting his status in the public sector, whether or not the rule is
unreasonable only in the narrow sense that it menaces a "right"
protected by an express provision in the Constitution. In this respect, a claim
of equal protection is freed of the limitations which apply to the doctrine of
unconstitutional conditions and to the indirect effects cases.

When viewed in this manner, an equal protection claim may, in fact, enable
the petitioner effectively to raise virtually the same arguments that he could
have raised directly under a concept of substantive due process as applied to
interests in the public sector. A systematic review of the equal protection and
due process lines of cases would, I believe, readily establish that the
constitutional tests of "arbitrary classification" are rapidly
becoming indistinguishable from the constitutional tests of "unreasonable
regulation" under the due process clause. Indeed, it is fair to say that
the two clauses have almost completely merged. When a direct substantive due
process claim is raised against a general regulation, the Court tends to assign
a certain value to the private interest which is being pressed and then
proceeds to require that the regulation be more or less rationally connected to
an allowable public interest not equally capable of accomplishment by
alternative means less detrimental to the private interest. When an equal
protection claim is raised against a legislative classification, the Court also
tends to assign a certain value to the private interest which is being pressed
and then proceeds to require that the basis of the classification be more or
less rationally connected to an allowable public interest not equally capable
of accomplishment by alternative means less detrimental to the private
interest.[48] And the private
interest may be, as in Wieman, primarily an interest in a public job,
or, as in Brown v. Board of Education,[49] an interest in a public education, or, as in
Douglas v. California,[50]
an interest in an appeal from a felony conviction  none of which is a
"right" protected under the due process clause.[51]

The potentialities for overthrowing restrictions attached to government
largess which courts may hold to be "unreasonable" through the use of
the equal protection clause are only beginning to achieve recognition. Yet an
approach which treats arbitrary rules or actions in terms of their
discriminatory effects is capable of greatly extending constitutional
safeguards into the expanding public sector, as recent decisions striking down
one-year residency requirements for welfare assistance demonstrate.[52] This use of the equal protection clause, although
it does not qualify the right-privilege distinction, does succeed in rendering
it inconsequential.[53]

E. Bills of Attainder

In the case of American Communications Association v. Douds,[54] a majority of the Supreme Court upheld
a provision of the Taft-Hartley Act[55] which denied access to the National Labor Relations
Board to any labor union whose officers declined to file noncommunist
disclaimer affidavits. In that case, the Court rejected a claim that this
provision constituted a bill of attainder in violation of article I, section 9
of the Constitution.[56] In 1965,
however, the Court in United States v. Brown[57] adopted the argument in invalidating a successor
provision of the statute;[58] the
disabling of a certain fixed group from serving as officers in a union
constituted a sufficient "penalty" to be noticeable under the
attainder clause. Although this is not the place to analyze Brown or the
full requirements of a claim of attainder, it should be sufficient to note that
this argument, in the narrow class of cases to which it may be applied, renders
the right-privilege distinction inconsequential to the extent that the
attainder clause protects "privileges," such as access to the NLRB or
the privilege of serving as a union officer, as readily as it protects
"rights."

Given these several means of limiting or avoiding entirely the effects of
Holmes' ruling in McAuliffe, we may well conclude that the
right-privilege distinction has lost most of its significance in constitutional
litigation. Under these circumstances, we might also conclude that the cutting
edge of the right-privilege distinction has been ground down to such an extent
that no harm is done by leaving its essential logic unexamined. A respect for
the greatness of Mr. Justice Holmes suggests, moreover, that to tilt at his
epigram even after it has ceased to do much mischief is a task likely to
degrade the critic far more than to diminish the stature of a great Justice.
There is, however, an unfinished feel about these several devices which
circumvent the right-privilege distinction, and a humiliating concession common
to them all. The implicit concession is that Holmes was correct in his basic
position and that we have managed merely to evade his statement without daring
to meet it head on with a convincing intellectual response. This failure to
meet Holmes on his own ground means, moreover, that constitutional decision
making in the field of governmental relations still follows no predictable
course. With this in mind, we turn back one last time to the epigram itself.

III. AN EPIGRAM UNDONE

Mr. Justice Holmes was surely the Supreme Court's master of epigrams,[59] but he was quick to recognize the
spurious seductiveness of the well-turned phrase  even when it was his
own. As a general admonition he once remarked:[60]

It is one of the misfortunes of the law that ideas become
encysted in phrases and thereafter for a long time cease to provoke further
analysis.

Fortunately Holmes did provide a further analysis of his own encysted phrase
of 1892, that "[t]he petitioner may have a constitutional right to talk
politics, but he has no constitutiona1 right to be a policeman." The
analysis was provided in a brief article in 1918 in which Holmes developed a
concept he had passingly mentioned in The Common Law.[61] Addressing himself to the nature of a
legal right, Holmes suggested:[62]

[F]or legal purposes a right is only the hypostasis of a
prophecy the imagination of a substance supporting the fact that the public
force will be brought to bear upon those who do things said to contravene it
 just as we talk of the force of gravitation accounting for the conduct
of bodies in space. One phrase adds no more than the other to what we know
without it.

Thus Holmes himself readily admitted that to deny that a person had
"right" to something was merely to announce the conclusion that a
court would not give him any relief; but the denial itself provides no reason
whatever why such relief should be denied.[63]

The impact of the McAuliffe epigram on succeeding generations of
courts has been a dual one. As used by Holmes it represents the inference that
because public employment is not protected, retention of that privilege may be
conditioned on the giving up of first amendment rights. This non sequitur has
been exposed and rejected by the courts applying the unconstitutional
conditions doctrine.[64] The more
invidious impact of the epigram, however, has been its use to supply a reason
why public status is not protected in the first place  because such
status is a privilege rather than a right. But, as Holmes' own analysis shows,
the epigram on this point plainly yields no reason at all. If we take it as
stating a reason, contrary to Holmes' intention, it becomes a perfectly
circular argument. This can be seen by substituting Holmes' definition of
"right" for the word itself as used in the epigram. Attempting to use
the right-privilege distinction as a reason to deny relief to McAuliffe then
produces only the following tautology:

Because the public force will not be brought to bear upon those
who discharged petitioner, he has no right to be a policeman. And because
petitioner therefore has no right to be a policeman, public force will not be
brought to bear upon those who discharged him.

Thus restated, the epigram scarcely presents itself as an adequate basis for
extinguishing constitutional review. It plainly does not say why petitioner's
dismissal was constitutionally tolerable under the circumstances of the case,
nor will continued staring at the epigram ever so enlighten us.

A further examination of Holmes' statement in McAuliffe and of the
government's position today, moreover, will indicate that the conclusion in
McAuliffe is unsound and undesirable. In rejecting McAuliffe's claim to
constitutional protection of his employment status with the government, Holmes
appears to declare that an individual's employment interest in the public
sector stands on no higher constitutional footing than individual employment
interests in the private sector.[65] The point emerges for a second time in
Commonwealth v. Davis:[66]

For the Legislature absolutely or conditionally to forbid public
speaking in a highway or public park is no more an infringement of the rights
of a member of the public than for the owner of a private house to forbid it in
his house.

If Holmes' reasoning was that infringements in the public sector which are
no greater than nor different from infringement in the private sector can be no
more subject to constitutional restraint than are the private infringements,
his point, no no matter how plausible it seems when read quickly, is a non
sequitur. To be sure, the fourteenth amendment leaves private infringements
unaffected, and it does so whether such infringements are great or small,
reasonable or arbitrary. That, after all, was the lesson of the Civil Rights
Cases[67] in their literal
rendering of the amendment: that it is only a "state" which is
forbidden to ignore due process and equal protection in its dealings with
individuals. Far from providing that states are under no greater obligation to
observe due process in the conduct of their enterprises than private employers
or home owners in the management of similar enterprises, however, the amendment
expressly distinguishes the two situations for constitutional purposes and
provides that it is specifically the state (if only the state) which must
observe due process. And the amendment does not say that "no State, except
when acting in a proprietary capacity," shall deny due process; rather, it
makes no distinction at all respecting the capacity in which the state acts.

Even if the text of the fourteenth amendment were less clear and even if
there were room for a distinction to be made between "proprietary"
and "governmental" state action there would be no reason to make it.
As a wholly original proposition, it is difficult to see any need to vouchsafe
to government the prerogative of arbitrary power or of fundamental unfairness
in its conduct of a public undertaking. A minimum demand of uniformly
reasonable rules in the management of public largess is surely an
unexceptionable requirement of constitutional government. Indeed, the fact that
arbitrary decision making in the private sector is not subject to
constitutional restraint makes it even more important to provide individuals
with an alternative sphere of activity by foreclosing such power in the public
sector.[68]

With the increasing size of government as an economic unit, moreover, it is
simply no longer true that a particular infringement related to employment by
government is no greater than a particular infringement made by a private
employer. Holmes' conclusion that there is "no constitutional right to be
a policeman" may have been influenced by the comparatively small economic
role played by governmental units in 1892. Excluding McAuliffe from public
employment still left open to him a very large percentage of the available
employment in the country. But today the federal and state governments directly
or indirectly control a great proportion of the nation's employment; if one is
unable to hold public employment, his chances of personal economic success are
significantly limited. Not only is he excluded from a substantial portion of
the available jobs, ranging from postman to nuclear scientist, but his
bargaining power with other employers is proportionately decreased. And the
expansion of government with its attendant influence on the individual is not
limited to employment, for the government is playing an increasingly crucial
role in other areas such as housing, education, and welfare. In the field of
welfare especially, the individual's alternatives to acceptance of arbitrary
government action are practically nonexistent, and the potential control over
his personal life is therefore practically absolute. This substantial influence
which expanded governmental activity gives the goverment over the private lives
of its citizenry makes the restraints of substantive due process necessary.
Indeed, a failure to demand substantive due process of government even as it
expands would be a constitutional incongruity against the emerging trend to
bring private decision makers within the Constitution when the impact of their
enterprises becomes so great that the power they wield is functionally
equivalent to that traditionally exercised only by government.[69]

If, under a functional analysis, the conclusion reached by Justice Holmes in
1892 is no longer viable, then Holmes' own methodology should be used to label
an individual's interest in his public status a "right" directly
protected against unreasonable regulation. Such unreasonableness need involve
only the lack of a sufficient connection with an adequately compelling public
interest to warrant subordinating the individual interest under the
circumstances. The protection of an employee's job interest, a student's
interest in public education, or a tenant's interest in public housing would
thus not depend upon the fortuitous involvement of still other protected
rights. These other rights might enhance the individual's claim and they might
make it even clearer that the regulation in question is constitutionally
unreasonable, but they would not be indispensable to the petitioner's success.

The application of the view that substantive due process applies directly to
status interests in the public sector, has been confirmed in some recent
judicial action. In 1961, for example, the Fifth Circuit laid aside the
right-privilege tradition in protecting the interest of a student in completing
his college education at a public university.[70] Its decision was followed in a case involving
school suspensions, in which a district court commented:[71]

Whether the interest involved be described as a right or a
privilege, the fact remains that it is an interest of almost incalculable
value, especially to those students who have already enrolled in the
institution and begun the pursuit of their college training. Private interests
are to be evaluated under the due process clause of the fourteenth Amendment,
not in terms of labels or fictions, but in terms of their true significance and
worth.

And the Supreme Court appeared to agree when it ordered New York to
reinstate a professor at Brooklyn College who had been discharged because of
his refusal to testify before the Senate Internal Security Subcommittee.[72]

We may be a long time in working out the content of substantive process in
the public sector, just as we have been a long time evolving its standards in
the private sector. Overzealous courts may err too far in the protection of
this "new property," and then shift violently to the other extreme,
just as they once overextended themselves in behalf of the old property, only
ultimately to leave it to the mercies of the political process.[73] But that under appropriate
circumstances one's interest in his governent job, his publicly financed home,
his food stamp meals, or his state university educational opportunities may
indeed be constitutional rights in the positive-law sense ought no longer be
denied. That these interests may be regulated compatibly with other competing
interests need not be denied either, any more than it can be denied that
interests in private property may be regulated by zoning ordinances, sanitation
codes, building permits, or antidiscrimination laws. Any per se constitutional
distinction which would exclude governmental regulation of status in the public
sector from constitutional review would, to steal a phrase from Mr. Justice
Holmes, reflect neither logic nor experience in the law.

[10]Compare Hamilton v. Regents of
Univ. Of Calif., 293 U.S. 245, 262 (1934) (requirement to take military science
course as condition of enrollment upheld), with Dixon v. Alabama State
Bd. Of Educ., 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930 (1961)
(procedural due process required for expulsion of student in good standing at
tax-supported college).

[11] The pharse "government
largess" is used to describe the origin of a status dependent upon
government expenditures soley in diference to the conventional view that such
expenditures are initiated without constitutional obligation.

[12] The sources of substantive due process
antecedent to the Constitution are well described in E. Corwin, The
"Higher Law" Background of American Constitutional Law (1955). For
subsequent developments see J. James, The Framers of the fourteenth
Amendment (1956); J. TenBroek, Equal Under Law (1965); Graham,
Procedure to Substance  Extra-Judicial rise of Due Process,
1830-1860, 40 Calif. L. Rev 483 (1952); Howe, The Meaning of "Due
Process of Law" Prior to the Adoption of the Fourteenth Amendment, 18
Calif. L. Rev 383 (1930).

[15] The only argument available to
petitioners in Hamilton was based on the doctrine of unconstitutional
conditions, discussed at pp. 1445-49 infra. In this regard they
argued (unsuccessfully) that the ROTC requirement operated as an
unconstitutional condition upon their freedom of religion to the extent that
they had a conscientious objection to military training.

[26] Sherbert v. Verner, 376 U.S. 398, 404
(1963): "It is to late in the day to doubt that the liberties of religion
and expression may be infringed by the denial of or placing of conditions upon
a benefit or privilege."

[32] There are all sorts of difficulties in
trying to make sense of such a distinction, for reasonable persons may surely
disagree as to which provisions are "explicit." But see United
States v. Lovett, 328 U.S. 303, 321 (1946) (Frankfurter, J., concurring). One
might also wonder why the doctrine of unconstitutional conditions should be
confined to rights which are more or less explicitly described, and why it does
not extend equally to rights worked out by implication from more general
provisions such as the ninth amendment and the (substantive) due process
clauses of the fifth and fourteenth amendments. The fact remains, however, that
the doctrine has seldom been applied other than to explicit rights, notably
freedom of speech.

[T]he word "right" is one of the most deceptive of
pitfalls; it is so easy to slip from a qualified meaning in the premise to an
unqualified one in the conclusion. Most rights are qualified. A man has at
least as absolute a right to give his own money as he has to demand money from
a party that has made no promise to him; yet if he give it to induce another to
steal or murder the purpose of the act makes it a crime.

[38]But see United Pub. Workers v.
Mitchell, 330 U.S. 75 (1947). In fact, Holmes seems to have gone even further
than this and to have felt that the "reasonableness" of a regulation
could be somewhat more liberally construed when a privilege rather than a right
was involved. See Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S.
583, 602 (1926) (Holmes, J., dissenting).

[40] Nor did the statute provide that the
disclosure of membership would have to be furnished whether or not a given
teacher felt that such a disclosure would tend to incriminate him. Thus no
fifth amendment issue was presented. Compare Communist Party v.
Subversive Activities Control Bd., 367 U.S. 1 (1961), with Albertson v.
Subversive Activities Control Bd., 382 U.S. 70 (1965).

[41] The Court has typically eschewed a
"right of silence" approach in this area in favor of a balancing of
the indirect effects of the inquiry against the alleged need for and relevance
of the information. See, e.g., Gibson v. Florida Legislative
Investigation Comm., 372 U.S. 539 (1963), and cases cited therein.

[42] For a critical review of the case, see
A. Bickel, The Least Dangerous Branch 51-55, 203-04 (1962).

[Appellant] is entitled to have procedural due process observed
in the protection of these substantive rights even though substantive due
process would not compel the rights to be given. See also Greene v. McElroy,
360 U.S. 474 (1959).

[45] 386 U.S. 670 (1967) (per curiam). In
Thorpe itself a change in agency procedure, under which a hearing would
be required, enabled the Court to avoid the Constitutional issue.

[47]Wieman can also perfectly well
be analyzed as a case in which the decision was based upon an indirect effects
or even an unconstitutional conditions approach. However, it seems more
plausibly to be an equal protection case, especially since the Court's choice
of words ("arbitrary", "discriminatory") tends to describe
an invalid scheme of legislative classification.

[48] I do not in the least mean to imply
that the Supreme Court is reckless or unconstrained in its manner of
ascertaining and balancing the respective interests. Indeed, given the nature
of the Constitution, I see no alternative to this kind of inquiry so long as
judicial review is with us.

[51]But cf. Not 53 infra (interest
in public education held protected by due process). It might be argued that a
meaningful distinction still exists between claims of equal protection and
claims of due process, in that the former can be disposed of any time
government elects wholly to withdraw a particular privilege, while the rights
upon which substantive due process is based cannot similarly be systematically
destroyed. However, the likelihood of a state abandoning its system of public
education or its appellate procedure, or withdrawing from the field of public
employment is small. So long as the state continues to operatie in the public
sector, claims based on the equal protection clause should continue to avoid
the right-privilege problem.

[53] One theoretical limitation on the
effectiveness of an equal protection argument is the absence of an equal
protection clause in the fifth amendment to be applied to the federal
government. However, in Bolling v. Sharpe, 347 U.S. 497 (1954), the companion
case to Brown v. Board of education, the Court read an equal protection
provision into the due process clause. Although it was specifically stated that
the two were not necessarily interchangeable, the Court's later argument that
it would not read the Constitution to impose a lesser duty upon the federal
government than upon the states should be equally applicable to the type of
situation discussed in this article.

Holmes's likening of "right" to "gravity" is
doubtless traceable in part to the influence of William James and the very
skeptical writings of David Hume, who had used the "gravity" example
in precisely the same fashion 170 years earlier. See D. Hume, AN ENQUIRY
CONCERNING HUMAN UNDERSTANDING 26-28 (Gateway 1956). Unlike Hume, whose
skepticism led him to become a confirmed Tory, however, Holmes was led by his
own rejection of absolutes generally to embrace the democratic process as the
least dangerous means of establishing short term political truths.

[63] Holmes was among the first of the
legal realists to deflate the use of "right" from a reason in support
of a court's decision to a mere tipoff or reiteration of the result. See
O.W. Holmes, Jr., The COMMON LAW 169 (M. Howe ed. 1963). See also
Bingham, The Nature of Legal rights and Duties, 12 Mich. L. Rev. 1, 2-8,
15-16 (1913); Hohfeld, Some Fundamental Legal Conceptions as Applied in
Judicial Reasoning, 23 Yale L.J. 16 (1913).

[64] The collateral effect on freedom of
speech may not have counted for much to Holmes in 1892 simply because
constitutional doctrine in that area was not to develop for another 20 years.
Holmes himself radically altered his views respecting free speech between 1892
and 1920. Compare Commonwealth v. Davis, 162 Mass. 510, 39 N.E. 113
(1895), aff'd, 167 U.S. 43 (1897), with Abrams v. United States, 250
U.S. 616, 624 (1919) (Holmes, J., dissenting).

[68] This is not to imply that government
may not act in the interests of efficiency, economy, or a "maximizing of
profits"; quite the contrary. But if the government is to act in a fashion
detrimental to any citizen, whether government employee, government contractor,
or welfare recipient, it should have a rational purpose for its action which
relates to the function which it is performing.

To state that a person does not have a constitutional right to
government employment is only to say that he must comply with reasonable,
lawful, and nondiscriminatory terms laid down by the proper authorities.

[73]See, e.g., Lochner v. New York,
198 U.S. 45 (1905). See also Hetherington, State Economic Regulation
and Substantive Due Process of Law, 53 Nw. U.L. rev. 13 (1958); McCloskey,
Economic Due Process and the supreme Court: An Exhumation and Reburial,
1962 Sup. Ct. Rev. 34; Reich, The New Property, 73 Yale L.J. 733 (1964).
The phrase, "new property," belongs to Professor Reich. It is already
too well established to be displaced, but I mildly regret its use; it may imply
that the Court should be only as diligent in protecting status in the public
sector as in protecting the old property from state regulation  which
would result, of course, in scarcely any protection at all.